WESLEY CHAPEL BLUEMOUNT ASSOCIATION et al. v. BALTIMORE COUNTY, Maryland.
No. 90, Sept. Term, 1996.
Court of Appeals of Maryland.
Sept. 5, 1997.
699 A.2d 434
699 A.2d 434
WESLEY CHAPEL BLUEMOUNT ASSOCIATION et al.
v.
BALTIMORE COUNTY, Maryland.
No. 90, Sept. Term, 1996.
Court of Appeals of Maryland.
Sept. 5, 1997.
Eldridge, J., dissented and filed opinion.
Douglas N. Silber, Assistant County Attorney (Virginia W. Barnhart, County Attorney, on brief), Towson, for Respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.
WILNER, Judge.
The question before us in this appeal is whether the Baltimore County Board of Appeals was required by the State Open Meetings Act to deliberate in open session when considering an appeal from a hearing officer‘s approval of a development plan. An ancillary question, which the record does not permit us to resolve, is whether, upon a finding by the Circuit Court for Baltimore County that the board was so required and violated the law in not conducting its deliberation openly, the court was justified in requiring the county to pay 65% of the attorney‘s fees incurred by the persons challenging the board‘s action. We shall hold that the State Open Meetings Act applies to the consideration of development plans and thus required the board to deliberate in open session, and we shall therefore reverse a contrary judgment of the Court of Special Appeals. Because the circuit court omitted to make certain findings, however, the case will have to be remanded for further proceedings in that court with respect to whether (1) the violation justifies vacating the board‘s order, and (2) it justifies the award of attorney‘s fees.
This case is governed by four sections of the State Open Meetings Act, codified as
That issue, and the ancillary one regarding the assessment of counsel fees, also invoke
BACKGROUND
Governmental control over land development is effected principally in three ways—through the adoption of (1) master plans delineating the desired uses for all land within the planning area, both for development and for roads, parks, schools, and other public purposes, (2) zoning regulations designed to implement the master plans by placing legal restrictions on the use of the land by non-governmental persons and entities, and (3) subdivision and other development regulations designed to ensure that private development of the land is consistent with the applicable master plan and zoning regulations. Although each of these devices has an independent purpose and may be subjected to a separate development and approval procedure, their functions, to some extent, coalesce, in that they are all designed to assure that land development occurs in a manner that is consistent with overall legislative policy and community welfare. Thus it is that zoning decisions take into account the provisions of the applicable master plan and subdivision and development approvals take into account compliance with applicable zoning regulations. See Board of County Comm‘rs v. Gaster, 285 Md. 233, 401 A.2d 666 (1979).
These devices are provided for by both State and Baltimore County law.
This case involves the third of the three devices—the approval of a development, or subdivision, plan.3 It had its origin in a “concept plan” filed by Gaylord Brooks Realty Company (Gaylord) in June, 1993. In that concept plan, Gaylord proposed to build 34 single-family dwellings on 172.7 acres of land in northern Baltimore County. Nearly all of that land was zoned RC-4, a resource conservation zone designated for watershed protection. No change in that zoning was requested. The property was completely wooded and had streams and wetlands running through it. Gaylord proposed to cluster the development by building the homes on 51 acres, comprising 30% of the tract, and leaving the remaining 120 acres—70% of the tract—as a conservancy area.
The procedure for reviewing and approving development plans in Baltimore County is set forth in §§ 26-201 through 26-283 of the Baltimore County Code. As a first step, before preparing the concept plan, the applicant is urged to meet privately with county agencies to obtain information about their policies and standards that might affect the property and with the Department of Permits and Development Management (DPDM) to discuss concept plan requirements. § 26-202. The concept plan must set forth “an informative conceptual and schematic representation of the proposed development in a simple, clear and legible manner” and contain the other information required by § 26-202(c)(1) and (d). The second step is for the applicant to file the concept plan with DPDM, which transmits copies to various county agencies. Within 10 days, DPDM holds a concept plan conference with the applicant and the county agencies (1) to receive comments from the
This preliminary process was completed by Gaylord. A concept plan conference was held on June 21, 1993, and community input meetings were conducted in August and October, 1993.
Within 12 months after the final community input meeting, the applicant may file a development plan with the county Department of Public Works. That plan is far more specific than the concept plan and must contain the detailed information required by § 26-203. The plan is first reviewed by the Department of Public Works for conformance to the concept plan presented at the community input meeting and for compliance with § 26-203. If approved by the Department in those respects, it is forwarded to other county agencies for comment, and a hearing is scheduled before a DPDM hearing officer. § 26-204. Prior to that hearing, a public development plan conference is held, at which the Director of Zoning Administration and Development Management attempts to resolve any conflict in agency comments and any remaining unresolved comments raised or conditions proposed at the earlier community input meeting. All comments must be submitted to the hearing officer at least five days before the hearing and remain available for public inspection. § 26-205.
Section 26-209 permits any person aggrieved by a final action on a development plan to appeal to the county Board of Appeals. Petitioners filed a timely appeal, raising 13 issues, some legal, others factual in nature. Much of their argument was based on conditions and criteria established for R.C.4 zones in a 1992 zoning ordinance (Bill No. 113-92). Among other things, that ordinance declared that, in such a zone, a “minimum” of 70% of the acreage of the tract must be designated a conservancy zone; petitioners argued that, in this case, 70% was not adequate and that the hearing officer failed to consider evidence on that issue. The ordinance also provided that each lot in a rural cluster development must
Section 26-209(c) requires the board to conduct a proceeding by hearing oral argument and receiving written briefs. At its discretion, the board may receive additional evidence. Section 26-209(f) requires the hearing to be conducted “in accordance with the county board of appeals rules of practice and procedure.”5 At the outset, petitioners requested that the board (1) conduct a de novo hearing, and (2) conduct its deliberations in public, as, in their view, required by the Open Meetings Act. Both of those requests were denied. On August 31, 1994, the board heard argument from counsel in open session and then ended the hearing. On September 15, 1994, it rendered a written opinion discussing the issues raised by petitioners and affirming the decision of the hearing officer. With respect to the Open Meetings Act, the board stated:
“The appeal that is being heard by the Board is a development plan appeal which was before the Hearing Officer and not the Zoning Commissioner for Baltimore County. No zoning petitions (i.e., special exceptions, variances, special hearings) were filed with the development plan; hence,
there is no zoning matter before the Board in these proceedings. This Board has previously ruled that appeals of development plans to this Board are not subject to the open meetings law unless they involve ‘other zoning matters.’ It is pointed out that an open hearing was conducted on the record before this Board with regard to the appeal filed in this matter; however, this Board concludes that
Section 10-503(b) does not apply as to the deliberation process since the Board is hearing a development plan appeal as opposed to a zoning matter appeal.”6
Aggrieved by both the board‘s affirmance of the hearing officer‘s approval and its denial of their request that the board‘s deliberations be conducted in open session, petitioners filed two actions in the Circuit Court for Baltimore County—a petition for judicial review of the board‘s decision affirming the hearing officer‘s approval and a petition under
The Open Meetings Act issue was presented to the court on cross-motions for summary judgment. The county‘s position was, and remains, that, under
The Court of Special Appeals reversed on the ground that review of a development plan is not a “zoning matter” within the meaning of
As we have said many, many times, the cardinal rule of statutory construction is to ascertain and carry out the true intention of the Legislature. C.S. v. P.G. County Dept. of Social Services, 343 Md. 14, 24, 680 A.2d 470, 475 (1996); City of Baltimore v. Cassidy, 338 Md. 88, 93, 656 A.2d 757, 760 (1995). Especially when, as in this case, the words of the statute are susceptible to more than one meaning, it is necessary to consider their meaning and effect “in light of the setting, the objectives and [the] purpose of the enactment.” Tucker v. Fireman‘s Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986); see also Fraternal Order of Police v. Mehrling, 343 Md. 155, 174, 680 A.2d 1052, 1062 (1996) (quoting Tucker). One principal way to do that is to examine the relevant legislative history of the statute.
Although there were a variety of open meetings laws in effect earlier, the first comprehensive legislation in this regard came in 1977, with the enactment of new §§ 7 through 15 of Article 76A of the Maryland Code. The 1977 Act applied to each “public body,” a defined term, but only when the public
The exemption in the 1977 law for quasi-judicial functions served, in effect, to permit zoning boards, boards of appeals, and other administrative agencies to continue deliberating in closed session with respect to contested case hearings. In point of fact, the Act drew no generic distinction between the information-gathering and the deliberative aspects of a proceeding; whether a public body was required to meet in public depended on the nature of the function it was performing (whether it was advisory or quasi-judicial, for example) and the matter before it, not necessarily whether the body was gathering evidence, listening to presentations, or deliberating as to a decision. In our first look at the Act, in City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980), we observed that, to the extent the Act applied, it was “the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business.” Id. at 72, 410 A.2d at 1079.7 We noted that, although the Act did
By 1990, liberal exercise of the broad exemption for public bodies exercising quasi-judicial functions, initially provided for in § 9 of Article 76A (then set forth in
Senate Bill 620 did not pass; it was, instead, referred by the Senate Economic and Environmental Affairs Committee for interim study by an Open Meetings Law Subcommittee of the Committee. That subcommittee held two work sessions during the summer of 1990, at which it considered a variety of issues, including whether to continue the exemption for executive, judicial, and quasi-judicial functions and whether to modify the categorical circumstances justifying a closed session.9 One suggestion offered by the State Department of General Services was that public bodies continue to be allowed to discuss real estate acquisitions in closed session and that the existing exception covering that circumstance be expanded to include discussion of other procurement. The product of the subcommittee‘s deliberations was Senate Bill 170, sponsored by the Chairman of the Economic and Environmental Affairs Committee and introduced into the 1991 session.
Senate Bill 170 proposed sweeping changes in the Open Meetings Law, mostly directed at requiring more open meet-
That language provoked considerable opposition, principally from or on behalf of county and municipal governments. Although articulation of the opposition varied somewhat, essentially three concerns were raised. The first, and most general, one was directed at requiring deliberations on the part of any quasi-judicial agency on any matter to be conducted in public, the argument being that such a requirement would chill free and honest debate. A second, somewhat more specific, complaint was made with respect to deliberating zoning decisions in particular. Finally, several groups expressed concern that the term “land use decision” might encompass such things as the acquisition of property or the location of businesses within a county. Closed sessions as to those matters were permitted under the 1977 law and under Senate Bill 170, and the groups opposed any change in that approach. The Maryland Municipal League suggested an amendment to strike the proposed language and limit application of the Act to a public body “when it is hearing testimony regarding the granting of a license or permit or a request for a change of zoning classification.” That amendment would have allowed public bodies to deliberate in private with respect to all quasi-judicial matters before them and, indeed, would have permitted closed information-gathering sessions except in license, permit, and zoning reclassification cases. The League likened quasi-judicial bodies, when deliberating, to juries. It asserted that, during such deliberations, frank interchange was essential and that there should be no requirement that the deliberations of any quasi-judicial body be held in open session. It complained also that many quasi-judicial
Similar views were expressed by the Mayor of Baltimore, the Baltimore County Board of Appeals, and the Howard County Council. A letter from the Mayor‘s legislative liaison suggested that the provision dealing with licenses, permits, and land use decisions be amended to apply only to the portion of the meeting devoted to public testimony. The same view was taken by the Howard County Council, which urged that quasi-judicial bodies be permitted “to deliberate on a contested case involving permits, licenses and land use decisions in closed session.” The Baltimore County Board of Appeals analogized its deliberations to those of an appellate court. Requiring those deliberations to be conducted in public, it said, would “chill debate and render the decision-making process a sham.” None of these opponents, in presenting this broad objection, drew any distinction between zoning, development plans, other land use matters, licenses, or permits, but contended that the decision-making process generally would be jeopardized if required to be conducted in public.
The more focused concerns tended to overlap somewhat and hinged on the term “land use decision.” The Maryland Association of Counties complained that the term was “subject to several interpretations, including zoning, land acquisition, and proposed use of county-owned property,” and, if so construed, the provision “could conflict with exceptions to the law granted to discuss acquisition of real property or the locating of a business or industry in the county.” Apart from that, the Association expressed particular opposition to conducting deliberations on zoning matters in public. Similar concern di-
There was, of course, a great deal of support for the bill as well, principally from the news media and organizations such as Common Cause. The Economic and Environmental Affairs Committee, and ultimately the Legislature as a whole, rejected both the broad attack on requiring any deliberations to be conducted in public and the narrower objection to requiring deliberations on zoning matters to be conducted in open session10 but did address some of the concerns expressed over the vagueness of the term “land use decision.” The Committee struck the term “land use decision” and inserted in its place the current language—“special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter.” Unfortunately, there is nothing in the legislative history to indicate the origin of that language. We know only that it was adopted by the Committee and remained intact throughout the rest of the legislative process.
There can be little doubt, and the county concedes the point, that, had the “land use decision” language remained in the bill, it would have sufficed to cover an appeal from the approval (or disapproval) of a development plan. The drafters of Senate Bill 170 clearly intended that the deliberative process on matters concerning land use be conducted in open meetings. It is telling, we think, that none of the opposition to the “land use decision” language sought to draw any distinction between pure zoning cases—variances, special exceptions, conditional uses, reclassifications, and the like—and development or subdivision plan cases. As noted, the counties and municipalities objected, first, to requiring open deliberations in any contested case, second, to requiring open deliberations in any contested land use case, and, third, to open deliberations in any contested zoning case. No one complained of requiring open deliberations in development plan approval cases. Indeed, the only focused concern raised about the phrase “land use decision” was whether it might include proposals for land acquisition, either by the government or by a business entity seeking to locate within the county. There is no evidence—none whatever—that the technical distinctions the courts had drawn between land use planning, zoning, and development control ever were considered by the Legislature or played any part in the development of the statutory language.
These cases, and others in which the separate functions of planning, zoning, and development control have been discussed, have to be viewed in context. The fact that planning, zoning, and development regulation are separate processes, sometimes committed to the jurisdiction of different agencies, often will have significance, depending on the issue before the court. The issue here is whether, in revising the Open Meetings Act to let in more sunshine, the General Assembly
To construe the term “other zoning matter,” as used in
The Court of Special Appeals applied the doctrine of ejusdem generis in limiting the scope of the catchall term. As we made clear in In re Wallace W., 333 Md. 186, 193, 634 A.2d 53, 57 (1993), however, quoting in part from Blake v. State, 210 Md. 459, 462, 124 A.2d 273, 274 (1956), that doctrine “should not be invoked where it would ‘subvert [the statute‘s] obvious purpose.‘” Adopting the premise set forth in 2A Sutherland Stat. Const. § 47.22, at 210, we explained that “the general words will not be restricted in meaning if upon a consideration of the context and the purpose of the particular statutory provisions as a whole it is clear that the general words were not used in the restrictive sense.” Id. at 193, 634 A.2d at 57. That is certainly the case here. If the Legislature did not intend to include within the ambit of the catchall term other land use matters likely to come before the agency that did not fall within one of the enumerated areas but nonetheless had some nexus to zoning, the catchall would have no effect, and
When viewed in this way, it seems clear that the review of development plans, which have a very close nexus to zoning, constitutes a kind of “other zoning matter” intended to be included within
Our conclusion that the Board of Appeals was required by
We shall reverse the judgment of the Court of Special Appeals because it rested on a construction of law with which we disagree. We cannot direct that the judgment of the circuit court be affirmed, however, because that judgment also was inappropriate. We shall therefore direct that the Court of Special Appeals remand the case to the circuit court in order that it may consider, and make specific findings, whether the statutory conditions to voiding an action taken in violation of the Open Meetings Law are present. Although, as we have indicated, an assessment of attorney‘s fees under
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT FOR ORDER REMANDING CASE TO CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THIS OPINION; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE COUNTY.
Dissenting opinion by ELDRIDGE, J.
ELDRIDGE, Judge, dissenting:
As a matter of public policy, the majority‘s construction of the Open Meetings Act is preferable to and more rational than the construction of the statute by Baltimore County and the Court of Special Appeals. Unfortunately, however, the majority‘s construction is not supported by the unambiguous lan-
Notes
“[The Court]: If there is a dispute that arises as to whether the plan is in compliance with all the zoning requirements, would the approval or disapproval of the plan then constitute an ‘other zoning matter,’ if the board was required to make some ruling on compliance
[County Attorney]: Yes.... Had [petitioner] gotten before the board of appeals and said we believe the hearing officer violated the zoning ordinance, then that issue should have been handled as an open meeting on that issue.... If there was an allegation that the hearing officer had violated the zoning law and had in fact exercised a zoning function, then yes that would be a matter that should be raised to the board and that issue should be addressed open, publicly.”
As we have seen, an argument was made before the Board that the development plan was not in compliance with provisions in the 1992 zoning ordinance (Bill No. 113-92).